Alliance for Safe, Efficient & Competitive Truck Transportation v. Federal Motor Carrier Safety Administration
410 U.S. App. D.C. 304
| D.C. Cir. | 2014Background
- FMCSA developed public safety databases (SafeStat, SAFER, L&I) and in April 2010 announced replacement of SafeStat with the Safety Measurement System (SMS), a more comprehensive public tool; SMS was implemented in December 2010.
- SMS provides performance scores derived from enforcement and inspection data but, according to FMCSA, does not alter formal safety fitness determinations (SFDs) under 49 U.S.C. § 31144.
- Petitioners (trucking companies and trade associations) previously challenged SMS in 2010, sought a stay, and later settled with FMCSA; the settlement required a disclaimer on the website clarifying SMS is not an SFD.
- On May 16, 2012 FMCSA posted PowerPoint explanatory materials about its three databases (including SMS) that included the settlement disclaimer; petitioners filed for review on July 16, 2012.
- Petitioners argued the 2012 PowerPoints were effectively a new legislative rule (or reflected a substantive policy change) promulgated without APA notice-and-comment and that SMS methodology is arbitrary and capricious.
- FMCSA argued the PowerPoints merely explain an already-announced and implemented SMS (2010), include the agreed disclaimer, and do not change SMS methodology or create new obligations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2012 PowerPoint presentations are a reviewable "rule, regulation, or final order" under the Hobbs Act and timely challenged | PowerPoint materials are a new, "astonishing" policy change constituting a final agency action subject to Hobbs Act review | PowerPoints merely explain the SMS announced in 2010 and are not a new final order; challenge is untimely | Dismissed as untimely: PowerPoints are explanatory of the 2010 SMS; Hobbs Act 60-day limit bars the challenge |
| Whether petitioners may attack underlying SMS methodology via the 2012 PowerPoints (reopening doctrine) | PowerPoints are inextricably linked to SMS methodology, so they reopen and allow review of the prior methodology | PowerPoints did not substantively reopen or reconsider SMS; reopening doctrine does not apply | Reopening doctrine inapplicable; challenge to SMS methodology is time-barred as it attacks the 2010 action |
| Whether the PowerPoints effectively promulgate SMS as a new safety-fitness standard despite the disclaimer | The presentations encourage shippers to rely on SMS scores co-equal with SFDs, undermining statutory credentialing | Presentations include explicit disclaimer (from settlement) that SMS is not an SFD and do not alter SFDs or operating authority | Court finds disclaimer meaningful and PowerPoints do not supplant SFDs; no new fitness standard created |
| Whether petitioners preserved jurisdictional timeliness arguments | Petitioners raised substantial policy objections but did not show the 2012 materials differed materially from 2010 notice | FMCSA points to the 2010 Federal Register notice and prior implementation as the operative action for timeliness | Court treats the 2010 announcement/implementation as the relevant final action; 2012 filing was too late under 28 U.S.C. § 2344 |
Key Cases Cited
- United Transp. Union-Ill. Legislative Bd. v. Surface Transp. Bd., 132 F.3d 71 (D.C. Cir. 1998) (Hobbs Act 60-day time limit is jurisdictional)
- Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. Cir. 2000) (disclaimer language may be ineffective if merely boilerplate)
- Public Citizen v. Nuclear Regulatory Comm’n, 901 F.2d 147 (D.C. Cir. 1990) (reopening doctrine can revive otherwise time-barred challenges)
- P & V Enters. v. U.S. Army Corps of Eng’rs, 516 F.3d 1021 (D.C. Cir. 2008) (reopening doctrine requires serious, substantive reconsideration)
- Am. Road & Transp. Builders Ass’n v. EPA, 588 F.3d 1109 (D.C. Cir. 2009) (discusses limits of reopening doctrine)
- Nat’l Mining Ass’n v. U.S. Dep’t of Interior, 70 F.3d 1345 (D.C. Cir. 1995) (reopening doctrine standards)
- Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197 (2011) (recognition that Hobbs Act time limit is jurisdictional)